The Individual Mandate May Be in Trouble

The linchpin of President Obama's health care law, the individual mandate, is in trouble, according to some observers of today's Supreme Court hearing. It's not a scientific assessment but it's based on the microscopically-scrutinized utterances of the nine justices who reviewed the law during this morning's two-hour session of oral arguments.

From the outset, everyone knew the disposition of Justice Anthony Kennedy would be crucial given his reputation as the unpredictable swing-vote. Kennedy appeared more skeptical of the mandate than some predicted, saying the Obama administration has a "very heavy burden of justification" to demonstrate the mandate's constitutionality. The Wall Street Journal reported that Kennedy said "the insurance mandate changes the relationship between the federal government and individual citizens 'in a fundamental way.'"

"It appears that the mandate is in trouble," wrote SCOTUS blogger Tom Goldstein. "It is not clear whether it will be struck down, but the questions that the conservative Justices posed to [conservative lawyer Paul] Clement were not nearly as pressing as the ones they asked to [Obama lawyer] Solicitor General Verrilli."

CNN legal analyst Jeffrey Toobin was even more skeptical about the prospects of the mandate. "This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

The New Republic's Jonathan Cohn, a liberal supporter of the administration's bill, also interpreted the justices' reactions as skeptical. "Impossible to know how much justices were tipping hands," he tweeted, "But if tone, substance of q's was indicative, SCOTUS is skeptical of govt case."

Covering the liberal justices, Politico reports that "Ruth Bader Ginsburg and Stephen Breyer, challenged the conservative wing. Ginsburg argued that forcing people to buy food is different than requiring them to purchase insurance, citing a friend-of-the-court briefing that uncompensated care leads to higher costs for all consumers."

As for Chief Justice John G. Roberts, The Washington Post reports that he "wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies." Verrilli countered saying health care is unique because individual's can't foreshadow what ailments will befall them or what services they'll need. Justice Samuel Alito raised the issue of burial services. "Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral?" he questioned, saying the the government's underlying logic is "artificial." That prompted Breyer to step in, saying "If the United States had a burial insurance market equivalent to the extensive system of private and public insurance that it has for health care, perhaps it would not be inappropriate to require people to obtain burial plans." Clarence Thomas, meanwhile, asked no questions (he's typically the silent type).

Pretty much everyone agrees that it will all come down to Kennedy at this point. Giving his final assessment of the day's arguments, Goldstein notes that Kennedy's remarks still left open some wiggle room. "After pressing the government with great questions, Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn't overtly embrace that" he wrote. "It will be close. Very close."

Update: The audio and transcript from today's oral arguments are now available here.